Meredith v. Wilkinson

1. Evidence—Admissions.—In a controversy about the alleged fraudulent transfer of property, it is not admissible to prove statements made by the vendor to a third person, not in the presence of the vendees, affecting the title of the vendees, after the’purposes of the conspiracy, if any, have been accomplished. Nor are such statements by the vendor, when made after the transfer, with possession, admissible on general principles, to affect the title of the transferee. 2. Practice—Instructions.—An instruction may omit an element proper to be considered in* the respective rights of the parties, and yet there will be no error if such element be clearly supplied in other instructions given. 3. Practice—Instructions—Use of the Word “ Grossly.”—There is no error in the use of the word “grossly” in an instruction which declares that the amount of a surety’s responsibility must not be “grossly inadequate” to the value of the property trans" forred for indemnity of the suretyship. 1. Practice—Opening and Closing.—The right to open and close the argument may be awarded in the sound discretion of the court, and error is not assignable thereof, except in cases of manifest abuse or prejudice.

Appeal from the Perry Circuit Court, Hon. James D. Pox, Judge. The verdict is so utterly at variance with common sense, so opposed to the weight of evidence, so against the manifest truth of the matter, so opposed to the law, even as declared by the trial court, that it must have been the result of caprice, prejudice, passion, or some other cause other than a conviction that appellants acted in bad faith in purchasing the property, and it should not be permitted to stand. Spohn v. Railroad, 87 Mo. 74 ; WMtsett v. Ransom, 79 Mo. 258 ; Garrett v. Greenwell, 92 Mo. 120 ; Rothchilds v. Railroad, 92 Mo. 91; Baker v. Stonebraker’s Adm’r, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Caldwell v. Smith, 88 Mo. 44. And in this view the testimony should be considered in the light of the following proposition of law: That when all the facts bearing upon the question of the intent of a transaction will as well consist with honesty as with dishonesty and fraud therein, the court ought not to find the same to be corrupt and fraudulent; the proof of the fraud should be perfectly satisfactory. Dallam v. Renshaw, 26 Mo. 533; Hausmann v. Hope, 20 Mo. App. 193; Rumbolds v. Parr, 51 Mo. 592; Page v. Dixon, 59 Mo. 43; Henderson v. Henderson, 55 Mo. 534 ; Eunlchouser v. Lay, 78 Mo. 462; Lennox v. Harrison, 88 Mo. 491; Jones v. Talbot, 4 Mo. 279; Muenks v. Bunch, 90 Mr. 500; Priest v. Way, 87 Mo. 16. The court erred in admitting the testimony of John C. Schudy, on behalf of plaintiff, as to the declarations of Munson M. Wilkinson. Declarations of the grantor made after the sale was completed and interpleaders had taken possession of the property, not made in the presence or hearing of either of them, are mere hearsay and incompetent to invalidate the title of his grantee. Albert a. Beset, 88 Mo. 150 ; Gordon r>. Ritenour, 87 Mo. 54 ; Gutzweiler v. Lackmann, 39 Mo. 91; Ladd v. Oouzins, 35 Mo. 513 ; Holmes n. Braidwood, 82 Mo. 610; Stewart «. Balls’ Adm'r, 35 Mo. 202; Worley v. Watson, 22 Mo. App. 546. Nor is the testimony of said witness admissible on the theory that there was a conspiracy, for the follow-* ing reasons: (1) Because there was no conspiracy proven, and the act or declaration of one of several charged with entering into a conspiracy is inadmissible to prove the conspiracy or common design. (2) Because the declarations testified to were not made in furtherance of and in the prosecution of the conspiracy charged and while it was in fieri. (3) Because the conspiracy charged was in the execution of the bill of sale and the sale and delivery of the property, and it is proven and admitted in plaintiff’s answer that the bill of sale was executed and the property sold and delivered on December 1, 1886, and the declarations testified to have been made to Schudy were made after the time Munson Wilkinson left home, which was on December 7, and consequently they were made after the completion or consummation of the act charged; and in this last view, even had there been a conspiracy proven in the execution of the bill of sale and the sale and delivery of the property, the declarations would be inadmissible, ■because the acts or declarations of one conspirator are not admissible against another, when the common enterprise is ended, whether by accomplishment or abandonment. State r>. McGraw, 87 Mo. 161; State v. Fredericks, 85 Mo. 145; State v. Reed,- 85 Mo. 194 ; State 7). Barham, 82 Mo. 67; Laytham v. Agnew, 70 Mo. 48; Boyd n. Jones, 60 Mo. 454; Weinrich 7). Borter, 47 Mo. 293; State v. Duncan, 64 Mo. 262; State 7). Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32, 50, 51; Wo'ight v. Oornelius, 10 Mo. 174 ; Weinstein ■». Reid, 25 Mo. App. 41.; Masse v. Algermissen, 25 Mo. App. 186. The declarations were not made in regard to the execution of the bill of sale and were inadmissible^ Boyd v. Jones, 60 Mo. 454, 471. For the reasons given in the foregoing proposition the court erred in refusing instruction number seven, asked by inter-pleaders ; or to say the very least, the court erred in refusing instruction number eight, asked by them. Holmes v. Braidwood, 82 Mo. 610. The court erred in giving instructions one, two, and three, for plaintiff, in not recognizing the right of a debtor to prefer one creditor to another. The rule is well settled that a debtor has the right to prefer a particular creditor over his other creditors, and this implies the right of acceptance,, even if in so doing it shall hinder and delay other creditors, and it is no objection to an assignment made to pay a bona-fide debt that the intent of the parties was to postpone or hinder other creditors. Singer v. •iGoldenberg, 17 Mo. App. 549; Shelley v. Boothe,.73 Mo. 77 ; Lane v. Ewing, 31 Mo. 75; Holmes v. Braidwood,. 82 Mo. 610 ; Saddlery Co. v. Timer, 24 Mo. App. 534 ; Cordes v. Straszer, 8 Mo. App. 61; Creely v. Reading, 74 Mo. 309. Instruction number four, given for plaintiff, is meaningless and misleading. The instruction should have defined what was meant by the expression— “if the amounts of their debts and the amounts necessary to indemnify them as sureties were grossly inadequate” to the value of the property transferred. líueller v. Ins. Co., 45 Mo. 84; Wiser v. Chesley, 53 Mo. 547; Edelmann v. Transfer Co., 3 Mo. App. 503 ; McPheeters v. Railroad, 45 Mo. 26 ; Boocher v. Hasseer 75 Mo. 383 ; Speak v. Ely & Walker, 22 Mo. App. 122. The errors complained of in the instructions given for plaintiff were not cured by the giving of other correct instructions, or the giving of correct instructions for the other party, since it cannot be determined whether the. jury was influenced by the erroneous or the valid instruction. Jones •». Talbot, 4 Mo. 279; Nasse Algermissen, 25 Mo. App. 186; State v. Clevenger, 25 Mo. App. 653; Thomas ». Babb, 45 Mo. 384; Frederick Allgaier, 88 Mo. 598 ■; Goetz v. Railroad, 50 Mo. 472 ; Buel v. Transfer Go., -45 Mo. 562 ; Otto v. Bent, 48 Mo. 23; Binbeutel v. Nauert, 2 Mo. App. 295. The court ■erred in allowing plaintiff the opening and closing in the ■case. Burgert n. Borchert, 59 Mo. 80, 85; Spooner v. Ross, 24 Mo. App. ,599; Nolan v. Rents eh, 23 Mo. App. 1. An appellate court will not disturb a verdict on the ground merely that it is against the weight of evidence unless it can be seen that the preponderance is so great as to imply some gross partiality or some prejudice or misconduct on the part of the jury. Spohn v. Railroad, 87 Mo. 84; Whittsett v. Ransom, 79 Mo. 260 ; Baker v. Stonebraker’’ s Adm’r, 36 Mo. 345 ; In re Bowman, 7 Mo. App. 569 ; Robert v. Eyerman, 7 Mo. App. 592 ; Brown v. Railroad, 13 Mo. App. 462 ; Greffet Rowdal, 17 Mo. App. 280, 283 ; 0 ’ Connor v. Standard Theatre Co., 17 Mo. App. 675; Walker v. Owens, 25 Mo. App. 587; Townsend v. Gates, 25 Mo. App. 336; Burgert v. Borchert, 59 Mo. 80. The acts and declarations established at the trial were sufficient prima-faeie proof of conspiracy to justify the action of the court in permitting the testimony of the witness Sehudy to go to the jury for their consideration on the whole case. Commonwealth n. Scott, 123 Mass. 222; ■s. c., 25 Am. Rep. 81; Commonwealth v. Brown, 14 Gray, 419; Miller ». Barber, 4 Cent. Law Jour. 177-8 ; People v. Parish, 4 Penn. 153 ; Sweat r>. Rogers, 6 Tenn. 118; Page v. Parker, 40 N. EL 62. In order to •ascertain whether the acts and declarations of the grantor are admissible, it devolves upon the court to determine for itself whether other facts are sufficiently proved and whether these facts are prima-faeie sufficient proof that the parties have combined to effect the fraudulent design. If it finds that there is such proof, at admits the declarations as fit evidence to be considered toy the jury in forming their judgment on the whole case, and 'who may, nevertheless, negative the combination. Burhe. v. Miller, 7 Cush. [Mass.] 547; Bump on Fraud.-Conv. [2 Ed.] 567; State v. Boss, 29 Mo. 32, 51 ; Boyd v. Jones, 60 Mo. 454. Generally the declarations of a grantor, made after the execution of his deed, cannot be made use of to defeat the deed. There are, however, several exceptions to this general rule, and one exception is that, where the parties to the instrument have entered into a common scheme to hinder, delay, or defraud the creditors of the grantor in the deed, and the declarations are made by the grantor while engaged in the prosecution of that plan. Boyd v. Jones, 60 Mo. 454; Gardner v. Preston, 2 Day, 205 ; see note in 2 Am. Dec. 95; Banh v. Bussell, 50 Mo. 531, 534; Cordes v. Straszer, 8 Mo. App. 61; Holmes v. Braidwood, 82 Mo. 610 ; Weinrich v. Porter, 47 Mo. 293; 1 Wharton Law of Evidence [2 Ed.] sec. 259 ; Bump on Fraud. Conv. [2 Ed.] 566. It was competent for the plaintiff to put ■ in evidence any acts and declarations of the several conspirators in furtherance of the common purpose of the conspiracy, either before or after the execution of the bill of sale. Commonwealth v. Brown, 14 Gray, 419 ; Commonwealth v. Scott, 123 Mass. 222; Kimmel v. Geeting, 2 Grant [Pa.] Gas. 125. Neither the word “grossly” nor the word “inadequate,”, as used in said instruction, has any technical meaning different from its ordinary signification, and both being common English words, whose meaning is well defined in the ordinary dictionaries of the language, and well understood by all understanding said language; there was no necessity for defining either of said words in the fourth instruction mentioned. Johnson v. Sullivan, 23 Mo. 474, 481 ; Berry v. Wilson, 64 Mo.. 164,. 165; Steinlcamper v. McManus, 26 Mo. App. 51. Instructions one, two, and three, given for plaintiff, did not negative the right of a debtor to prefer one creditor to another, and on the contrary, instructions two and three, given for inter-pleaders, expressly asserted this right to the fullest extent permitted by the law. The party on whom the burthen of proof rests is entitled to open and close the case. Porter v. Jones, 52 Mo. 403; Haney v. Heirs of Sulims, 56 Mo. 372 ; Tibeau v. Tibeau, 22 Mo. 77; Reiehard v. Ins. Co., 31 Mo. 518.